Justice Stevens–Present and Past

John Paul Stevens has a new book coming out on how the Constitution should be amended. Not bad for someone who is about to turn 94.

Recently, I came across a 1957 Harvard Law Review piece by Alexander Bickel commenting on a book that profiled some members of the Supreme Court. Professor Bickel noted that: “Mr. John Paul Stevens of the Chicago Bar contributes a most artistic, affectionate, but withal not uncritical sketch of a Justice of our own day, the late Wiley Rutledge.” This must be the first time that the future Justice was mentioned in the HLR.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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15 Responses

I think it’s worth pointing out in this context, that the constitutions of most states have in them analogs to the 2nd amendment, some of them adopted quite recently. State constitutions are typically much easier to amend than the federal Constitution. And yet, people who agree with Stevens about the 2nd amendment have not succeeded in repealing even one of those amendments.

I think it’s worth pointing out in this context that Brett, a self-proclaimed anarcho-libertarian, is a Second Amendment absolutist for whom the Second Amendment would prevail in conflict with the First Amendment Speech and Press Clauses, perhaps in the belief that the Constitution and Bill of Rights (including the protection of slavery?) were inspired by God: Praise the Lord and pass the ammo!

As to the first comment, Stevens’ argument would give the people of each state discretion, free from certain types of federal invasion, in this area. State constitutional provisions would further that goal.

His 14A argument, which would be where limiting state discretion would rest, is that there is a credible argument for the broad individual right view of the majority in McDonald but the matter is open to debate and not clear enough to override state discretion in the area. States themselves having the discretion state by state to have constitutional provisions, each with various nuances, again would not violate this principle. There were various states, including MA and IL, where the broad view was not in place thus the importance of federal protection under McDonald v, Chicago. The people of the states in question did not “repeal” the more limited view of the RKBA.

So, where does this take us other than calling Stevens “senile” is both crude and unwarranted?

Where it takes us, is that Stevens wanted to effectively razor blade out of the Bill of Rights a right he doesn’t like, despite the ample evidence it is widely treasured. This having failed to accomplish this by judicial fiat, he proposes an amendment which it would be an understatement to call “dead on arrival”; It won’t even begin the journey, and for the best of reasons: In a democracy, legislators fear for their seats if they propose it.

Either he is delusional about the amendment’s prospects, (Which would require senility, the evidence is so profound.) or his book is something of a joke. I don’t think he’s a comedian.

Either way, I’d love to know what the other proposed amendments are, I’m curious as to whether they’re equally laughable/outrageous.

Perhaps Brett will actually read the book at some point. Frankly his reading seems to be limited to trolling blogs to spew his many hateful views. As to Brett’s “razor blade” comment, might razor blades be considered as “arms” within his absolutist view of the Second Amendment? Careful shaving, Brett.

The “judicial fiat” referenced concerned not overriding two laws passed by the people who apparently “widely treasured” having the power to pass such laws, at least going by what they did, as compared to the opinion of someone who thinks all nine justices did not properly protect the 2A in the two opinions in question, though he somewhat likes one set of opinions better.

Perhaps I will read it, I frequently read books on the subject which I’m moderately confident I’ll disagree with. I am somewhat annoyed that this is the only one of the amendments I’ve been able to find any reference to. What were the topics of the others?

One positive thing to say about Stevens: Proposing an amendment is the honest way to go after what he attempted with his minority opinion in Heller.

The decisions in both Heller and McDonald were 5-4. I am not aware that the Court has granted Cert on any other 2A cases as yet; McDonald, which followed Heller, issued on June 28, 2010. These 5-4 decisions are limited to “guns” of a certain type in the home for purposes of self defense. Each of these 5-4 decisions provides extensive dicta on possible regulatory limitations that might impact 2A rights. So the extent of 2A is not clear at this point beyond the limited holdings of these decisions. The history of matters relating to the 2A as set forth in these decisions and the dissents has been seriously questioned. It has been almost four years since McDonald. Perhaps there is a reluctance on the part of the Court to sort out the results of state courts and lower federal courts on the 2A cases since Heller and McDonald. Perhaps the Justices in the majority are concerned with 2A yahoo absolutists such as Brett.

“The history of matters relating to the 2A as set forth in these decisions and the dissents has been seriously questioned. ”

Heck, *I’ve* questioned them. Both opinions in that case were lousy from an originalist standpoint. The minority worse, of course, because they wanted to kill the right off entirely, instead of just rendering it less frightening. But both stank.

We know the Court was reluctant to take 2nd amendment cases. They spent 70 plus years refusing cert to every case where the 2nd amendment was raised, taking Heller only when a lower court presented them with a case where, to not take the case was to assure a pro gun outcome.

I suppose that, having tackled the issue finally, they are *slightly* less reluctant to take such cases. But every such case forces them to once again confront something ‘conservative’ judges are naturally averse to doing anything about: The gulf between legal practice and constitutional law that grew up during that 70 years.

So, while I think they’ll probably be mostly inclined to correctly rule on such cases, where they can avoid having to let people own “every terrible instrument”, it will likely take circuit splits to get them to overcome their reluctance to return to the subject. Such as the recent 9th circuit case generated.

Yes, Brett has indeed questioned them, having also identified himself as an anarcho-libertarian and a 2A absolutist. Of course his neighbors should be aware of this and build their arsenals in the name of self defense for their protection from possibly an accident waiting to happen. Of course 2A absolutists have self-defense rights to counter other 2A absolutists who may snap: Gats beget more gats. An arsenal in every home might lead to MAD – or get even.

The announcement of Justice Stevens’ new book, and that it deals with the Heller decision, is most interesting.

I recently began a new series of posts entitled “District of Columbia v Heller Dissent” at On Second Opinion Blog, which analyzes historical errors relating to Second Amendment arguments. The first part was posted about two weeks ago. Several additional parts will be forthcoming in the next week or so.

The subtitle of the first post is “Justice Stevens’ Train Wreck of American History”.

I understand from professional historians that both Scalia’s and Stevens’ histories in Heller wrecked much of American history and originalism to boot. By the way, I wonder if Mr. Young is a 2A absolutist. Some constitutional scholars critical of Scalia’s dicta as a train wreck of American history are 2A absolutists.

BTW, the book Stevens contributed to is an updated version of ” MR. JUSTICE: Biographical Studies of Twelve Supreme Court Justices” by Edited by Allison Dunham and Philip B. Kurland. It has at least one chapter that should be useful for the professor’s four horsemen project, which perhaps is why he came upon the reference cited.